223 P. 1001 | Cal. Ct. App. | 1924
Defendant was charged and convicted of the crime defined in section
[1] The victim of defendant's alleged assault was a girl six years of age. The story of the offense was told by Thomas Murphy, a police officer, who was on duty in the old fair grounds, San Francisco. While walking through the high weeds he saw the little girl lying on the ground and the defendant apparently lying over her. He grabbed the defendant and pulled him over. Defendant's pants were down, his privates were exposed, and the child was lying on her back, her coveralls were down over her feet and her flesh exposed. "I asked him why he should be guilty of such a crime," testified the officer. "He said his only excuse was he had been drinking moonshine."
It is argued, on behalf of defendant, that the evidence does not support the allegations of the information, in that it cannot be inferred from the evidence that "the defendant placed his hands and private parts upon and against the body and legs and private parts of the child." The facts in the instant case are somewhat similar to those in People v. Dong Pok Yip,
[2] It is the function of the jury in the first instance, and of the trial court after verdict, to determine what facts *309
are established by the evidence, and before the verdict of the jury, which has been approved by the trial court, can be set aside on appeal upon the ground we are discussing, it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below. (People v. Tom Woo,
[3] Defendant's objection to the instructions of the trial court was that "they were not sufficient to cover the offense charged in the information. In other words, they were not specific enough to establish the rule of evidence in prosecutions under section
"The Court instructs the jury that if you believe from the evidence beyond a reasonable doubt, that in the city and county of San Francisco, at or about the time mentioned in the information, the defendant did feloniously, willfully and lewdly commit a lewd and lascivious act upon or with the body, or upon or with the members or private parts of the body of Anita Jones, by then and there touching, rubbing or fondling the body, or members, or private parts thereof, of the said Anita Jones, as charged in the information, with intent then and there of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the defendant, and the said Anita Jones, or either of them, as charged in the information, and that the said Anita Jones was then under the age of fourteen years, then you should find the defendant guilty."
This instruction, by its reference to the particular act charged in the information to have been committed by the defendant, does, we think, sufficiently differentiate between this offense and the acts constituting other crimes against children, provided for in other sections of the Penal Code; and otherwise the instruction follows the language *310
of the statute. We find, therefore, no merit in defendant's contention. [4] Furthermore, our supreme court has enunciated a rule of law, applicable to this class of case, which provides that "where a party in a criminal case fails to ask the court to give instructions to the jury upon a particular point, he cannot complain of error on the part of the court in not giving the instructions." (People v. Rogers,
Judgment and order affirmed.
Tyler, P. J., and Richards, J., concurred.
